A Look Back at DISCLOSE

The Democrats have majorities in both chambers of Congress. Many members of those majorities were concerned that Citizens United would lead to political speech that lessened their chances of re-election. The DISCLOSE Act was an effort, within limits imposed by the courts, to discourage that speech and thus increase the chances threatened members of the majority would be re-elected.

A simple disclosure requirement imposed on independent spending would not have done the trick. Many of the groups that congressional Democrats fear would have no problem with a simple disclosure attached to their independent ads. So the House sponsors ramped up the disclosure requirement in the bill by requiring CEOs to appear in the ad endorsing its content and the revelation of donors supporting the ad. They also broadened prohibitions on speech by government contractors and companies headed by non-citizens. Supporters of the legislation argued such prohibitions would cover most of the Fortune 500. The purpose of the legislation seemed to be getting around Citizens United and reinstating the ban on corporate speech.

The effort started to come apart when the National Rifle Association demanded an exemption from the enhanced disclosure mandates. The NRA had enough support from House Democrats to kill the bill so DISCLOSE’s sponsors exempted the NRA from its requirements. Other groups also wanted an exemption. Reformers were appalled even as the the groups granted exemptions grew by the day. The bargaining process that in most legislation became all but public with DISCLOSE. Like most “reform” bills, DISCLOSE presented itself as an ethical exercise to protect the integrity of the government. One does not bargain over righteousness. Senate Democrats threatened to vote against the bill because of the NRA.

After much work and more bargaining, a majority for the bill was found in the House. On the Senate side, the sponsors needed at least one Republican vote. They could not get it. The senators from Maine correctly surmised the bill was a crude partisan undertaking even by the standards of campaign finance. They also reasonably called for Congress to take its time and produce a bill that might not cause serious unexpected consequences. But the whole point of the bill was to move quickly to protect incumbents in the majority in the fall. Democrats settled for blaming Republicans for blocking the bill and hoping voters would remember all this in five months.

A simple disclosure requirement might have passed, but it would not have been very useful politically so it was not an option. More than anything else, the three or four months devoted to DISCLOSE indicated the intensely political nature of campaign finance regulation, a species of legislation said to be devoted to the general interest in government integrity. Once again political realities belie mistaken hopes held by the general public more than the seasoned pols on Capitol Hill.